Petition to reopen proceedings; 8 USC § 1229a(c)(7)(C)(iv); Jurisdiction; Review of a Board of Immigration Appeals (BIA) determination that a petitioner failed to present “extraordinary circumstances” necessary for a discretionary reopening of a Violence Against Women Act (VAWA) applicant’s removal proceedings; § 1229a(c)(7)(C)(iv)(III); “Safe harbor” provision (§ 1252(a)(2)(D)); Whether Congress intended to leave the issue of extraordinary circumstances exclusively to the Attorney General (AG); Whether petitioner qualified for reopening under the VAWA; Immigration judge (IJ)

In an issue of first impression in the Sixth Circuit, the court held that it had jurisdiction to review the BIA’s determination that petitioner-Sarkisov did not show the “extraordinary circumstances” required for application of the special rule for VAWA’s petitioners as to an untimely motion to reopen proceedings. But because it concluded the BIA’s decision was not erroneous, it denied his petition for review. Sarsikov, an undocumented Russian citizen living in the U.S. for at least 20 years who was subject to a final order of removal, successfully petitioned for a visa under the VAWA. He then moved to reopen his immigration proceedings under a special rule for VAWA petitioners that gives the AG discretion to waive the applicable time limitation for filing a motion to reopen for “‘an alien who demonstrates extraordinary circumstances or extreme hardship to the alien’s child.’” He claimed that the “‘cumulative psychological effects of the abuse from his former wife constitutes extraordinary circumstances[,]’” justifying the over 6-year delay between the final removal order and the motion to reopen. An IJ found “there were no ‘extraordinary circumstances’ warranting an exercise of discretion to reopen the removal proceedings.” The BIA affirmed. On his petition for review, the court first held that it had jurisdiction to review here because the issue fell under the “safe harbor” for judicial review of “‘constitutional claims or questions of law.’” It concluded “that whether ‘extraordinary circumstances’ warrant waiver of the deadline for reopening immigration proceedings is a mixed question of law and fact.” It rejected the AG’s argument that Congress intended to leave the issue of extraordinary circumstances exclusively to the AG, determining that what “constitute ‘extraordinary circumstances’ warranting waiver of a filing deadline is not so unmanageable that it evades review.” The court held that the legal standard here was “susceptible to meaningful review.” After discussing what kind of circumstances are extraordinary, the court turned to the merits. It agreed with the BIA that Sarkisov failed to establish extraordinary circumstances where, as the BIA found, “‘the abuse and resulting psychological effects could explain some reasonable delay in filing the motion to reopen,’ but ‘they did not constitute extraordinary circumstances excusing the 6-year delay between the finality of the order of removal and the filing of the motion to reopen.’”